In January, we noticed an interesting new procedure from Judge Norieka where, rather than address the pending motions on eleven grounds in detail, she ordered the parties to file a joint letter ranking their summary judgment motions and identifying any disputes over claim scope.
When the parties identified some "dispositive" claim construction disputes in the letter, the Court ordered briefing on those disputes.
Now, the Court has held its Markman hearing (less than a month after close of briefing), and issued an oral ruling on the new constructions at the hearing. It found for the defendants on all disputes.
The parties then filed a letter, where the plaintiff admitted that, if the Court sticks with its new constructions, its case is over—unless the Court re-opens fact discovery:
Presuming that the Court’s final order does not substantially depart from the Court’s remarks as reflected in the hearing transcript, Dali anticipates that it cannot prove infringement under the Court’s claim construction (to which Dali reserves all objections) based on the existing factual record. With that said, based on issues newly raised by the Court’s supplemental claim construction, Dali is presently considering whether to request that the Court reopen fact and expert discovery, so that Dali may further investigate whether a viable infringement theory exists—which theory Dali has reason to believe exists and would otherwise have pursued during fact and expert discovery had CommScope timely raised its claim construction positions that were instead advanced for the first time during summary judgment briefing.
(Hindsight is 20/20, but I think Plaintiff would have been better off being more decisive in its letter. I don't think the Court was likely to reopen discovery regardless, but merely suggesting (without even asking) that Plaintiff would like 14 days to consider whether to request to reopen discovery probably wasn't the best way to get that relief.)
On Friday, the Court made clear that (unsurprisingly) it is not interested in re-opening fact discovery so that Plaintiff can find new ways to support its infringement allegations. Instead, it canceled trial and asked for a proposed form of judgment:
ORAL ORDER - The Court has now issued four supplemental claim constructions (D.I. 321), and Dali has represented that these constructions likely dispose of its claim of infringement in favor of CommScope (D.I. 319). THEREFORE, IT IS HEREBY ORDERED that, on or before March 11, 2022, the parties shall submit a proposed form of judgment consistent with these representations and which results in a final judgment upon entry. IT IS FURTHER ORDERED that, pursuant to the agreement of the parties (D.I. 319), the dates for the final pretrial conference and trial are hereby VACATED, along with any accompanying deadlines for trial-related submissions.
All told, the Court converted summary judgment motions on eleven issues into a single claim construction brief, and ruled on that brief in about a month, resolving the action.
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